Masad v. Nanney et al
ORDER granting 14 Motion to Dismiss, by Magistrate Judge Michael J. Watanabe on 8/27/2014. Masads claims are DISMISSED under Rule 12(b).(slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action 14-cv-00577-MJW
ABDUL MUNER MASAD,
ROBERT NANNEY, individually and in his capacity as Deputy Sheriff for Adams
PHILLIP MEANEY, individually and in his capacity as Deputy Sheriff for Adams County,
DOUGLAS DARR, individually and in his capacity as Sheriff of Adams County,
ADAMS COUNTY, COLORADO,
DEFENDANTS’ MOTION TO DISMISS (Docket No. 14)
MICHAEL J. WATANABE
United Stated Magistrate Judge
According to his Complaint, Abdul Muner Masad was arrested for no good
reason, with bail set at an abnormally and unreasonably high level due to fibs told by
the arresting officers. The ordeal, he says, caused him embarrassment, financial
losses, and medical deprivation. The charges were later dropped, and he has now
sued the arresting officers and their employers (Adams County, Colorado and its sheriff)
for damages. The Defendants have moved to dismiss all of Masad’s claims under
Rules 12(b)(1) and 12(b)(6) (Docket No. 14).
The parties have consented to have this case resolved in its entirety by a
magistrate judge under 28 U.S.C. § 636(c) (Docket Nos. 15, 18). The Court will dismiss
Masad’s claims. In his objection to Defendants’ motion, Masad suggested that he
instead be allowed to amend his complaint; the Court concludes, however, that
amendments would be futile.
Masad’s Legal Claims
To determine whether Masad has stated any claims upon which relief can be
granted, the Court must first figure out what his claims are. Masad is represented by
counsel—but nonetheless, the Complaint is not as helpful on this point as it might be.
Under the heading of “First Claim for Relief,” Masad alleges that he was falsely
arrested by Deputy Robert Nanney (one of the Defendants). The legal theory is not
otherwise explained, but this would appear to be a state-law tort claim.
Under the heading of “Second Claim for Relief,” Masad alleges that he “was
denied his constitutional rights to be free of unlawful arrest and free from excessive bail”
and that he “was denied his rights to liberty and to be free from cruel and unusual
punishment.” The allegations under this heading refer to three Defendants: Deputy
Nanney, Deputy Phillip Meaney, and Sheriff Douglas Darr. Masad goes on to allege,
later under this same heading, that the Defendants’ “conduct violates [Masad’s] rights
as guaranteed by Article II, Section III, VII, XX and XXV of the Colorado Constitution
and the 4th, 5th, 8th, 11th and 14th Amendments to the United States Constitution.”
That laundry list of legal citations would ordinarily be far too sweeping to be of
any use, but Plaintiff has agreed to dismiss any claims based on the Colorado
Constitution or the Eleventh Amendment (Docket No. 21, at 5, 13). The Court therefore
DISMISSES those claims without further analysis. Further, to the extent Masad asserts
a procedural or substantive due process claim under the Fifth or Fourteenth
Amendments, the Court DISMISSES those claims as duplicative. See Shimomura v.
Carlson, ___ F. Supp. 2d ___, 2014 WL 585343, at *5 (D. Colo. 2014) (“‘[W]here a
particular Amendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment, not the more
generalized notion of  due process, must be the guide for analyzing these claims.’”
(quoting Albright v. Oliver, 510 U.S. 266, 273 (1994))).
Viewing the remaining legal authorities in light of Masad’s more specific
allegations, the Court will construe Masad’s claims as: (1) false arrest in violation of the
Fourth Amendment; (2) cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments1; (3) and excessive bail in violation of the Eighth Amendment.
Under the heading of “Third Claim for Relief,” Masad alleges negligent hiring by
Sheriff Darr and by Adams County, arguing that those Defendants’ hiring practices led
to unlawful conduct by Deputies Nanney and Meaney. As with the first claim for relief,
this is a state-law tort claim. However, the State of Colorado has not waived its
sovereign immunity as to such claims. Kahland v. Villareal, 155 P.3d 491 (Colo. App.
2006) (holding that negligent hiring is not among the torts that can be brought against a
public entity or public employee under the Colorado Governmental Immunity Act); Riley
v. Rollison, 2007 WL 324579, at *4 (D. Colo. Jan. 31, 2007) (same). The Court
therefore DISMISSES these claims without further analysis.
In his objection to Defendants’ motion to dismiss, Masad says that “C.R.S. § 16-3401(2) places an affirmative duty on the Sheriff to provide medical care to an inmate If
needed.” Masad asserted no state-law cause of action relating to his medical care in
his Complaint, and the Court will not consider one in this Order.
Under the heading of “Fourth Claim for Relief,” Masad apparently alleges a
municipal-liability claim under 42 U.S.C. § 1983 against Adams County and against
Sheriff Darr in his official capacity.
Finally, under the heading “Fifth Claim for Relief,” Masad alleges that Deputies
Nanney and Meaney used Masad’s national origin, race, and religion against him at the
bail hearing. No other allegations are made, and no attempt is made to connect this
statement to some variety of equal protection or disparate treatment claim. The
allegations here would appear to relate only to the excessive-bail claim, and the Court
will discuss them in that context.2
Under Rule 12(b)(6), the Court must accept the facts Masad alleged in the
Complaint as true; further, if there are inferences that must be drawn, the Court must
draw them in Masad’s favor. Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010).
Only factual allegations are to be accepted as true; allegations of legal conclusions—for
example, that conduct was “unreasonable,” “negligent,” “willful and wanton,” and the
like—are not included in the Court’s analysis. Kansas Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1214 (10th Cir. 2011). Generally speaking, only the Complaint is to be
considered; facts and documents that the parties have brought forward while briefing
the motion to dismiss usually have no bearing on the motion. See Archuleta v. Wagner,
In Masad’s objection to the motion to dismiss, as to this fifth claim for relief, he argues
that Defendants violated his substantive due process right to be free of government
conduct that shocks the conscience (Docket No. 21, at 11–12). There is no credible
way to read any of the language in the Complaint as raising such a claim, and the Court
will not construe the Complaint as doing so. Moreover, such a claim would be
dismissed as duplicative anyway. See Shimomura, 2014 WL 585343, at *5.
523 F.3d 1278, 1281 (10th Cir. 2008). That said, there are a few ways in which such
additional facts and documents can become relevant, and two of those ways come to
First, additional facts provided by Masad in opposing the motion are not relevant
to whether he has stated a claim—but they are relevant to whether there’s some chance
he could save his claims in an amended pleading. See, e.g., Grossman v. Novell, Inc.,
120 F.3d 1112, 1126 (10th Cir. 1997). Second, the Court may take judicial notice (if
otherwise appropriate under Federal Rule of Evidence 201) of the existence and
contents of certain public records, although the Court may not rely on truth or falsity of
those records. See, e.g., ASARCO LLC v. Union Pac. R. Co., 755 F.3d 1183, 1188 n.5
(10th Cir. 2014); Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). The Court
will take notice under Rule 201 of the affidavit and application for arrest warrant and the
application for increased bail (Docket Nos. 14-1 and 14-2) from Masad’s arrest.
Once the set of operative facts is established according to the foregoing rules,
the Court must decide whether those facts adequately state grounds for relief. It is not
necessary for Masad to allege a prima facie case including every last element of his
legal claims—but he must put forward enough facts for the Court to infer that his claims
are at least plausible. Khalik v. United Air Lines, 761 F.3d 1188, 1191–92 (10th Cir.
State-Law Tort Claims
Masad alleges that Deputy Nanney falsely arrested him. Under Colorado law,
there can be no tortious false arrest or false imprisonment by a police officer if the arrest
was supported by probable cause. Rose v. City & County of Denver, 990 P.2d 1120,
1123 (Colo. App. 1999); Enright v. Groves, 560 P.2d 851, 853 (Colo. App. 1977); see
also Pomeranz v. Class, 257 P. 1086, 1092 (Colo. 1927) (sheriff not liable for false
arrest where process was regular on its face). This rule of Colorado law has been
repeatedly recognized by the Tenth Circuit and the District of Colorado. See, e.g.,
Hinton v. Franck, 2000 WL 1846195, at *3 (10th Cir. Dec. 18, 2000); Trimble v. Park
County Bd. of Comm’rs, 2000 WL 1773239, at *3 (10th Cir. Dec. 4, 2000); Grobecker v.
Grundy, 2014 WL 3593513, at * 5 (D. Colo. July 18, 2014); Mott v. Officer John Does,
2008 WL 648993, at *6 (D. Colo. Mar. 4, 2008). Further, public employees are immune
from tort liability under the Colorado Governmental Immunities Act, unless their conduct
was willful or wanton. C.R.S. Sec. 24-10-118(c). In the context of a false arrest claim,
the Colorado Supreme Court has applied the definition of “willful or wanton” from other
areas of tort law: “wholly disregardful of the rights, feelings and safety of others . . . at
times even imply[ing] an element of evil.” Moody v. Ungerer, 885 P.2d 200, 204–05
(Colo. 1994). Thus, on top of the elements of the intentional tort itself, Masad must
allege facts showing both that his arrest lacked probable cause and, also, that
Defnedants wholly disregarded his rights in making the arrest.
“Whether probable cause exists depends upon the reasonable conclusion to be
drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck
v. Alford, 543 U.S. 146, 152 (2004). “Probable cause exists ‘where facts and
circumstances within an officer’s knowledge and of which he had reasonably trustworthy
information are sufficient to warrant a prudent man in believing that an offense has been
or is being committed.’” Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157,
1166 (10th Cir. 2003) (quoting Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985)).
“Determinations of probable cause are naturally based on probabilities, and a finding of
probable cause ‘does not require evidence sufficient to support a conviction, nor even
evidence demonstrating that it is more likely than not that the suspect committed a
crime.’” United States v. Funches, 327 F.3d 582, 586 (7th Cir. 2003) (internal quotation
marks and citation omitted).
Here, Masad was charged with sexual assault on a child by a person in a
position of trust (a class 3 felony), sexual assault on a child (a class 4 felony), and child
abuse (a class 2 misdemeanor). The affidavit and application for arrest warrant (Docket
No. 14-1) recounts (1) the contents of an iPhone video shown to a deputy sheriff and (2)
the statements of two eyewitnesses, Leonid Kruglik and Danielle Delgado. The video,
which Masad does not contend is somehow fabricated or misleading, shows Masad
engaging in conduct that establishes most of the elements of the crimes charged. The
statements of Kruglik and Delgado establish the remaining elements of the crimes
charged and several further instances of violations. The video and the witness
statements, taken together, establish probable cause as to the crimes charged.
Critically, Masad makes no allegations whatsoever regarding probable cause for
his arrest. His Complaint includes allegations that Deputies Nanney and Meaney made
false statements to the district attorney’s office, and that those false statements were
used to impose excessive bail (Complaint ¶¶ 13–17). He does not allege that those
false statements were used to obtain the arrest warrant. Nor could he: the affidavit and
application for arrest warrant does not include the statements alleged to be false. In
fact, at no point in Masad’s Complaint does he even allege that he was innocent of the
charges brought against him—let alone that Defendants lacked probable cause to
As to the willfulness and wantonness of the arrest, the Complaint is literally silent.
There are no facts alleged from which any inferences might be drawn, or even
speculations guessed at, bearing on the deputies’ motives, the facts known to them, the
diligence of their investigation, or the like. Indeed, outside of arresting Masad and
seizing his medication upon booking, the only actual acts or omissions alleged to have
been made by either deputy are their statements to the district attorney’s office in regard
to the bail-setting hearing. These are post-arrest acts with no relevance to a falsearrest claim.
Masad gives the Court no reason to believe that amending the Complaint would
cure it of its deficiencies. In his objection to Defendants’ motion to dismiss, Masad
brings forth additional factual allegations: specifically, that Kruglik was an employee of
Masad’s facing “immediate discharge from his employment,” and that Delgado “was
homeless and entirely dependent on [Kuglik] for her daily support” and “was in the
process of having her parental rights restricted at the time of the report.” These new
allegations, obviously, go to the credibility of the two witness statements recounted in
the arrest-warrant affidavit.
If Masad were to amend his pleadings to include these statements, he would
state a claim for relief only if the allegations (assumed to be true) would have vitiated
probable cause had they been included in the affidavit and application for arrest
warrant. See, e.g., Stewart v. Donges, 915 F.2d 572, 582 (10th Cir. 1990). If, on the
other hand, the issuing judge “would not have altered his probable cause determination
even if he had been presented with the omitted material, then the warrant should be
upheld.” United States v. Kennedy, 131 F.3d 1371, 1377 (10th Cir. 1997). Here, the
iPhone video provided sufficient corroboration of the witness statements, even if the
witnesses were otherwise non-credible, to support probable cause. Cf. Woods v. City of
Chicago, 234 F.3d 979, 997 (7th Cir. 2001) (when probable cause has been gained
from a reasonably credible victim or eyewitness, there is no constitutional duty to
investigate further); Simkunas v. Tardi, 930 F.2d 1287, 1292 (7th Cir. 1991) (“Having
uncovered sufficient evidence to establish probable cause,” officers had “no
constitutional obligation to conduct any further investigation in the hopes of uncovering
potentially exculpatory evidence.”). As a result, even if the affidavit had included the
information undermining the credibility of the two witnesses, it would still have shown
probable cause and the arrest would still have been lawful.
Further, although Masad states in his objection to the motion to dismiss that
further facts can be alleged to show willful and wanton behavior, he does not inform the
Court what those additional facts might be. Accordingly, the Court holds that amending
the Complaint would be futile; the state-law tort claims for unlawful arrest are
DISMISSED as to all Defendants, without leave to amend.
Fourth Amendment Claims
Masad also alleges false arrest under the Fourth Amendment against all
Defendants. This claim fails for the same reason the intentional-tort claims fail: there
was probable cause for the arrest. See, e.g., Grubbs v. Bailes, 445 F.3d 1275, 1278–
79 (10th Cir. 2006). The Fourth Amendment claims for false arrest are DISMISSED as
to all Defendants, without leave to amend.
Eighth & Fourteenth Amendment Claims
Masad also alleges that he was subjected to cruel and unusual punishment,
insofar as he suffered medical deprivations while in custody. “Under the Fourteenth
Amendment due process clause, pretrial detainees are entitled to the degree of
protection against denial of medical attention which applies to convicted inmates under
the Eighth Amendment.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)
(ellipses and quotation omitted). “A prison official's deliberate indifference to an
inmate’s serious medical needs is a violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.
Deliberate indifference “involves both an objective and a subjective component.”
Id. (quotation omitted). For the objective component, a prisoner must provide “evidence
that the deprivation at issue was in fact sufficiently serious.” Id. (quotation omitted). A
medical need is considered sufficiently serious to satisfy the objective prong if the
condition “has been diagnosed by a physician as mandating treatment or is so obvious
that even a lay person would easily recognize the necessity for a doctor's attention.”
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (internal quotation marks and
ellipses omitted). The subjective component requires “evidence of the prison official’s
culpable state of mind,” which may be fulfilled by showing that the official “[knew] of and
disregard[ed] an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and she must also draw the inference.” Mata, 427 F.3d at 751 (brackets
and quotation omitted). This “standard lies somewhere between the poles of
negligence at one end and purpose or knowledge at the other.” Id. 752 (quotation
For purposes of this claim, Masad alleges:
Plaintiff suffers from a serious back ailment and was and is on a strong
regimen of medications to treat the symptoms of his ailment. Plaintiff was
provided medical care while at the detention facility but the care did not
obviate the symptoms to the extent provided by his regular medications.
Plaintiff suffered pain while in custody in the detention facility and for an
extended period after his release.
(Complaint ¶ 11.) This fails to state a claim for deliberate indifference. To begin with,
Masad’s allegation that he suffered more pain than he otherwise would have fails to
establish the objective component of Masad’s claim—that his condition was sufficiently
serious to be either diagnosed by a doctor or obvious even to a lay person. And further,
Masad makes no allegations at all as to what the relevant prison officials knew about his
medical needs—except that they provided some medical care, which would suggest the
opposite of deliberate indifference. Masad has not stated a claim for deliberate
In his objection to Defendants’ motion to dismiss, Masad alleges no new facts
that might support his theory. The only statement on point is Masad’s argument that the
presence of prescription medications is sufficient to suggest to the jail doctors that
Masad has been diagnosed by a doctor with a condition warranting treatment (Docket
No. 21, at 9). However, Masad also states that he “was unable to demonstrate to the
medical care provider that he had a legitimate prescription for the medications” (Docket
No. 21, at 4), from which the only reasonable inference is that someone at the jail
asked. These new facts do not strengthen Masad’s deliberate-indifference claim.
Based on the arguments and facts as stated in Masad’s objection to the motion
to dismiss, the Court concludes that leave to amend the Complaint would be futile. The
deliberate-indifference claims are DISMISSED as to all Defendants, without leave to
Eighth Amendment Claims
Finally, Masad alleges that Defendants violated his Eight Amendment right to be
free from excessive bail. The Tenth Circuit has held that the Excessive Bail Clause is
incorporated against the states under the Fourteenth Amendment. Meechaicum v.
Fountain, 696 F.3d 790, 791 (10th Cir. 1983). The court held that “[b]ail is excessive
when set at an amount higher than necessary to insure the appearance of the accused
at trial.” Id. But in Meechaicum, unlike here, the defendant was denied bail altogether;
the Tenth Circuit has provided further analysis for such situations, see, e.g., Dodds v.
Richardson, 614 F.3d 1185 (10th Cir. 2010), but has not adopted any further analysis as
to claims for excessive bail, rather than denial of bail.
The leading case from other circuits appears to be Galen v. County of Los
Angeles, 477 F.3d 652 (9th Cir. 2007). There, the Ninth Circuit examined the limited
Supreme Court precedent on point, and concluded:
To determine whether the Excessive Bail Clause has been violated,
we look to the valid state interests bail is intended to serve for a particular
individual and judge whether bail conditions are excessive for the purpose
of achieving those interests. The state may not set bail to achieve invalid
interests, see Stack [v. Boyle, 342 U.S. 1, 5 (1951)]; Wagenmann v.
Adams, 829 F.2d 196, 213 (1st Cir.1987) (affirming a finding of excessive
bail where the facts established the state had no legitimate interest in
setting bail at a level designed to prevent an arrestee from posting bail),
nor in an amount that is excessive in relation to the valid interests it seeks
to achieve, see [United States. v.] Salerno, 481 U.S. [739, 754 (1987)].
Galen, 477 F.3d at 660. The court went on to conclude that a claim must satisfy one of
two alternative tests: “[t]o prevail on his claim that his bail enhancement violated the
Excessive Bail Clause, Galen must show that the Commissioner enhanced his bail for
purposes unauthorized by California law or that the amount of bail was excessive in
light of the valid purposes for which it was set.” Id. The Galen court reviewed a grant of
summary judgment for the defendants; it affirmed because the plaintiff had not adduced
any evidence as to the motives of the defendants—and that evidentiary gap prevented
any genuine dispute of fact under either of the alternative tests. Id. at 661–63. Finally,
the Galen court added one further hurdle. Because tort principles apply to § 1983
claims, and because judicial officers have long been held to be superseding causes that
break the chain of proximate causation, an excessive-bail claim can only succeed
where the defendants “deliberately or recklessly misled the [judicial officer who set bail]”
and “bail would not have been unconstitutionally excessive but for the officers’
misrepresentations.” Id. at 664 (emphasis added). Importantly, the Galen court’s tests
for excessive bail—improper purpose or excessiveness in light of a valid purpose—are
disjunctive, but the predicate but-for causation rule bars relief under either test. See id.
On motions to dismiss, courts have consistently followed the Galen court’s lead,
requiring complaints to allege facts showing (1) that one of the two tests is satisfied, and
also (2) that the defendants’ improper conduct proximately interfered with the state
court’s independent judgment in setting bail. See, e.g., Olajide v. Arsanis, 2014 WL
985102, at *7 (N.D. Cal. Mar. 7, 2014) (dismissing claim because defendant failed to
allege improper purpose, an amount that would be excessive, or that defendants
“deliberately or recklessly” misled the state court); Harvey v. City of South Lake Tahoe,
2013 WL 655164, at *13–14 (E.D. Cal. Feb. 21, 2013) (dismissing claim because
$80,000 bail could not have been excessive in light of bail schedule calling for $75,000);
Daoud v. Manchester Police Dep’t, 2011 WL 5837126, at *3–4 (D. N.H. Oct. 25, 2011)
(dismissing claim that failed to provide allegations as to any of the various state-law
factors bearing on flight risk); Muhammad v. San Diego County Sheriff’s Dep’t, 2008 WL
821832, at *2 (S.D. Cal. Mar. 26, 2008) (dismissing claim with no allegations from which
the court could judge whether the defendants had interfered with the state court’s
independent judgment in setting bail).
Masad’s Complaint passes the first part of the Galen test. Masad alleges that
the bond schedule for the crimes he was charged with called for bail to be set at
$50,000, while the district attorney asked for and received a cash-only bond of
$250,000. Masad alleges that Deputies Nanney and Meaney provided false information
to the district attorney’s office, leading to an increase in bail (Complaint ¶¶ 13–17).
Drawing inferences in Masad’s favor, the Court will assume that the deputies’ false
statements to the district attorney’s office were deliberate. Masad further alleges that
Defendants used his national origin, race, and religious affiliation as part of the case for
higher bail (Complaint ¶ 47). Taken to be true, these facts and inferences could
plausibly state a claim for relief based on the improper-purpose prong of the Galen test
(although, if this claim were going forward, an amended complaint putting these
allegations together under one claim of relief would be in order).
Nonetheless, Masad has not alleged any facts from which it can be inferred that
the conduct of Deputies Nanney and Meaney were the but-for cause of the excessive
bail. Taking judicial notice of the county’s application for $250,000 cash-only bail
(Docket No. 14-2), the false statements constitute a negligible portion of the argument
presented to the state court. And the remaining statements in the application are far
more salient: Masad possessed one-way airline tickets for travel out of the country; the
whereabouts of his alleged underage victim were unknown; Masad had a substantial
criminal history. The allegations in the Complaint do not suggest any plausible chance
that Masad will ultimately be able to prove but-for causation.
In his objection to Defendants’ motion, Masad fails to address any of those three
salient flight-risk factors (except to allege minor corrections to his stated criminal
history). Even if all of the additional facts contained in that objection were included in
the application for increased bail, the allegedly false statements would still not rise to
the level of but-for causation. Accordingly, it would be futile to amend the Complaint;
the excessive-bail claims are DISMISSED as to all Defendants, without leave to amend.
42 U.S.C. § 1983 Claims
“Section 1983 itself does not create any substantive rights, but merely provides
relief against those who, acting under color of law, violate federal rights created
elsewhere.” Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1536 (10th Cir. 1995) (citing
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Neither Adams County nor its Sheriff
in his official capacity can be liable under § 1983 if none of their employees violated
Masad’s federal rights. Martinez v. Beggs, 563 F.3d 1082, 1091–92 (10th Cir. 2009).
Because the Court has dismissed all of Masad’s constitutional claims against Deputies
Nanney and Meaney, the § 1983 municipal liability claims against Sheriff Darr and
Adams County are also DISMISSED.
For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to
Dismiss (Docket No. 14) is GRANTED and that Masad’s claims are DISMISSED under
Dated: August 27, 2014
/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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